Search Site

Sunday, June 04, 2017

SCOTUS Symposium: Sessions v. Dimaya and the Future of the Void-for-Vagueness Doctrine

One of the decisions that I am eagerly awaiting is Sessions v. Dimaya. Dimaya, a non-citizen, faced removal under the Immigration and Nationality Act because he had been convicted of an “aggravated felony.” The Immigration and Nationality Act defines “aggravated felony” in part by reference to 18 U.S.C. 16, a criminal statute that provides a number of definitions. Language in 18 U.S.C. 16 is very similar to language that the Supreme Court held to be unconstitutionally vague in a 2015 case,Johnson v. United States. As a result of this similarity, the Ninth Circuit (and a couple of others) held that 18 U.S.C. 16 is unconstitutionally vague.

The reason I am so interested in Dimaya is that the Supreme Court’s recent vagueness cases don’t make a whole lot of sense, and I’m hoping that the opinion in Dimaya will bring some clarity to this area of the law.

To be fair to the current Court, vagueness has never been a particularly consistent or well-developed doctrine. But we have seen two opinions in as many years from the Court that have muddied the water even further. The first of those decisions was Johnson. Johnson extended the vagueness doctrine beyond criminal statutes that define crimes to statutes that set punishments. Previous Supreme Court cases had suggested that the vagueness doctrine did not apply to pure sentencing statutes—a point that the government made in its brief—but the Johnson majority simply extended the doctrine without explaining why. This lack of explanation is troubling because, as I explained in a recent paper, once you extend the doctrine to sentencing, then many features of the criminal justice system arguably raise due process problems.

The second problematic vagueness decision came earlier this Term in Beckles v. United States. Beckles involved a challenge to a federal sentencing guideline that included language that was identical to the language that was deemed unconstitutionally vague in Johnson. But the Beckles Court held that the vagueness doctrine did not extend to the federal sentencing guidelines. The Beckles decision could be criticized on a number of grounds (fodder, I suppose, for another post), but it also further muddied the water surrounding the vagueness doctrine. One of the reasons that Beckles Court gave for not allowing vagueness challenges to the federal sentencing guideline was that advisory sentencing guidelines greatly resemble fully discretionary sentencing systems. Because no court has ever held that a system that gives judges no sentencing guidance is impermissibly vague, the Beckles Court concluded that a system that gives some guidance must be acceptable.

While a majority of Justices felt that the discretion given to judges was enough to dismiss the constitutional challenge, this reasoning raises more questions than it answers. The similarity between advisory guidelines and unfettered sentencing discretion is not obviously a reason to dismiss vagueness challenges. After all, the Supreme Court has repeatedly held that the danger of arbitrary and discriminatory enforcement created by “unfettered discretion” is the main reason why vague statutes are unconstitutional. Thus, one would think that the more discretion is present, the more due process scrutiny ought to apply.

Perhaps Dimaya will bring some clarity to the vagueness doctrine. Or perhaps the Court will dodge the vagueness issue by concluding that, because this challenge arose in the context of an immigration case, the vagueness doctrine does not apply with equal force. I’m interested to find out.